The Supreme Court Made Hobby Lobby Worse, for Women and for the LGBT Community



The end of a Supreme Court term usually brings a flurry of action on big cases. Last year, we got Justice Kennedy's decision in United States v. Windsor that struck down part of the Defense of Marriage Act and ushered in an unbroken marriage equality winning streak in the courts. This Supreme Court docket did not include any similar LGBT law cases. Nor did it end as heroically. This year, the Court's conservative majority allowed for profit companies to discriminate against women in the provision of health care in Burwell v. Hobby Lobby

But sometimes, it's the less heralded maneuvers that make all the difference: a silent nemesis that creeps up behind you can do a lot more damage than a screaming Visigoth charging head on.

SupremesThat's what happened at the end of the Court's term last month. Justice Alito's Hobby Lobby majority opinion explicitly limited the decision to closely-held (family-run) corporations and explicitly limited it to the particular forms of contraception that were at issue in the case. The justices in the majority went out of their way to say that the decision leaves antidiscrimination laws intact, that it does not apply to publicly-traded corporations, that the decision should be confined to its facts. What's more, the Court also stated that one of the main reasons the government could not compel for-profit companies to provide objectionable health care was because there already was a viable work around aimed at religious nonprofits. Those organizations fill out a form attesting to their religious objection and the contraception would be provided directly from the health care company and not through the employer.

Not 24 hours later, the Court proved to us that all those words meant nothing. After issuing a decision, the Court also ordered lower courts to rehear related cases that could be changed by the decision. If Justice Alito and the majority could be taken at their word, the only cases that would need rehearing were those cases within the explicit narrow confines of Hobby Lobby. But the order went further. To the great consternation of Justices Ginsburg, Sotomayor, and Kagan (notably, the three female justices on the Court), the majority ordered lower courts to rehear all pending cases involved religious exemptions to the contraception requirement, not just cases involving companies like Hobby Lobby and not just cases involving the particular forms of contraception involved in the case. And, as if that were not enough, the Court enjoined the very workaround meant for nonprofits that it appeared to endorse in Hobby Lobby as a viable alternative.

Left-leaning bloggers and writers — not to mention the three female justices on the Court — were apoplectic. The Court seems to have gone back on its word. Perhaps worse, the Court has broadened an already dangerous decision.

I summarize what the Court did, why Justice Sotomayor seemed so irate in her dissent, and why this matters for the LGBT community, AFTER THE JUMP

Hobby Lobby's objection to Obamacare's requirement that employers provide contraception health care coverage to their female employees was not the only objection out there. Hobby Lobby is a unique case: a family-run for-profit business that objected to four particular types of contraception, the provision of which, the family felt, would violate the Bible. The Court said that the law requiring Hobby Lobby to provide contraceptive coverage was too harsh and it pointed to the work around Obamacare implemented for religious nonprofits as evidence of a narrower, softer approach.

Such nonprofits must fill out the document that enables their insurers or third-party administrators to pay for the contraception directly. This absolves the employer from paying for it entirely. Insurers, then, get reimbursed by the government.

That work around was not enough for Wheaton College, an evangelical institution. The college argued that because filling out the form would provide a pathway for the contraception it found objectionable to still get to employees, even filing the form would violate their religious beliefs. Wheaton, therefore, refused to fill out the form and challenged the requirement and the work around.

After Hobby Lobby, one of the orders issued by the Court was an emergency injunction stating that Wheaton College did not have to fill out the form to opt out of the contraceptive coverage, thereby preventing their employees from getting the coverage, and could simply inform the government of its plans while its lawsuit was pending. Injunctions only get issued when, among other things, there is a likelihood of success on the merits, so the Court issuing the injunction suggests that, given Hobby Lobby, it think that Wheaton is likely to succeed in its lawsuit.

SotomayorJustice Sotomayor and her colleagues were livid, writing:

Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might … retreats from that position.

In Hobby Lobby, the Court used the existence of the workaround as proof that Obamacare's contraception requirement was too harsh and broad and that there were ways around the problem. To grant an injunction in Wheaton's favor on that very point is to implicitly recognize that Wheaton's constitutional objection to the workaround has substantive merit. So, basically, the Court was saying that the supposed viable alternative for Hobby Lobby is also likely unconstitutional.

Justice Ginsburg, in her Hobby Lobby dissent, warned that the Court was doing a lot more than its words seemed to suggest. This emergency injunction appears to prove her right.

Granted, the lower court hearing the Wheaton case could ultimately decide that the challenge fails. So, too, could the Supreme Court, if it every returned. But to say one thing one day and walk back from it the next is misleading, untrustworthy, and dangerous. Worse yet, it ruins the respect we have for the institution of the Supreme Court. And, perhaps most importantly, it broadens Hobby Lobby, making it more likely that it will get broader still and negatively impact the freedoms of the LGBT community.


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Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.


  1. pete n sfo says

    The SCOTUS majority can claim whatever they want, but it’s my opinion that they knew exactly what would be the result and this was precisely what they desired… an ever more religious influence in government and society… they have basically said as much in private comments made public.

    All of America should be very worried for the negative influence of this conservative court. It will impact the remainder of our lives on this planet.

  2. says

    Another gender feminist story cleverly insinuated on Towleroad…Most women hate Gays…..this story should be on Jezebel instead…

  3. Ready says

    Does anyone have some scandalous photos of any of the conservative justices? The difference getting just one of them to resign would make is incredible.

  4. Just_a_guy says

    My reaction to this is to want to openly refuse to step foot in any church again. I consider myself spiritual and even reasonably religious in an enlightened sense (but all very privately). For a long time now, I have been willing to attend services with friends/family in religious institutions that seemed less offensive than most–but I have avoided any regularity with church attendance because I have seen so little good come from churches.

    Now I am ready to take my church mistrust a step further: I refuse to eve attend any service at even a friendly-seeming church–because the religious community as a whole is using drastic political efforts to privilege itself (and it’s mostly harmful goals) at the expense of anyone else.

    This Supreme Court decision is a perfect example of that outsized and undue influence by “Christian” churches. I can’t even allow myself to appear to support that, sorry.

  5. Mike says

    The fact that we arguing that a business is responsible for paying for your contraception to begin with shows how far down the sh-tter this country has descended. Bunch of babies. Coddle me! Coddle me!!

  6. candide says

    the up-side of this endorsement by scotus of christianist privilege will encourage the christers to behave even more brazenly and undemocratically than they already do. their theocratic and dominionist agenda will be harder to conceal.

    that will make christianity even more repugnant to the rising generations which are already the most unreligious in american history.

    this christian overreach is a win for the new atheists.

  7. Moz's says

    BS mike

    the business isn’t paying for contraception

    the insurance company the business provides covers contraception…………anyway; hobby lobby is ok with their insurance carrier covering vasectomies and viagra

  8. Rick says

    We have a thing called religious freedom in this country. If Liberal feminists and gays would just take a second to recognize that they’re overstepping their bounds by trying to make all people/corporations think just as they do and support their lifestyles then perhaps the brilliance of the Supreme Court’s decision could be understood.

    Then again, those pushing an anti-religion and misandric agenda probably do not care about the facts. Considering it’s Liberals and women, is anyone truly surprised they’ve ignored reading comprehension just to put on offense?

  9. Joe says

    Give me a break. The only thing this decision said is that Person A does not have a right to tell the government to point a gun at Person B’s head and force Person B to pay for Person A’s birth control directly out of Person B’s pocket.

    A “right” to birth control does not exist, has never existed, and can never exist. It is impossible for a person to have a “right” to a scarce resource and/or to to product of another person’s labor. Birth control pills falls into these categories. Having said that, the Hobby Lobby decision by the Supreme Court does not effect in any way any person’s ability to obtain any birth control pill. The US government will have no more success in making birth control pills a “right” any more than the Soviet Union had in making bread a “right”.

    A person’s access to birth control isn’t in question in the Wheaton case either. Whatever the Courts decide in that case, they will not say that Wheaton can investigate their employees personal spending habits with their own personal money.

  10. Marek says

    I agree about the broader impact of the original decision.

    But: IANAL but I’m not sure if it’s fair to say that they “walked back” from what they said. Isn’t it so that the orders to review are usually quite broad? I guess they could list smaller number of cases and wait for the parties to ask for a review (if relevant), but still – didn’t they just say “we didn’t look at the details, the lower court should; but in principle there could be overlap, so let the lower court look at this”? The lower courts will review these cases, and still given the narrowness of the original decision will probably decide that nothing changes.

    I really dislike the original decision. But given the decision, I don’t think the order to review itself is that strange.

  11. AG says

    Who do proggies think they are? Limited government that favors morality is the way to go. Libs in every culture never get this and those cultures ultimately always fail. SCOTUS is at least postponing our ruin.

  12. IJelly says


    Could this eventually allow employers to refuse to cover HIV medication because they have sincerely held religious objections to the way someone may have become infected?

  13. Moz's says

    LOL AG

    when are you going to start dressing like a puritan you heathen

    civilization progresses inevitably, otherwise you would be burned as a witch by the original colonists

  14. kipp says

    “a silent nemesis that creeps up behind you can do a lot more damage than a screaming Visigoth charging head on.”

    Sigh. I am again disappointed with the over-the-top tone of Mr. Waldman’s articles. I would prefer more sober explanation and less “entertainment” in my legal analysis.

  15. Eric says

    NY Magazine had an article on new HIV preventive medications and questioned whether or not post Hobby Lobby corporations will refuse to cover it.

  16. says

    My respect for the Supreme Court evaporated when the conservatives handed the presidency to Bush.

    The Windsor decision was a relief; it did not regain for me the legitimacy the Supreme Court had lost.

  17. MACnNYC says

    The Supreme Court has still not recovered it’s status since their partisan and political rending of the 2000 US Presidential Election.

  18. TonyJazz says

    Scalia is one of the worst people I’ve ever heard of.

    How can that man sleep at night?

  19. simon says

    BS Mike knows nothing about health insurance probably because he doesn’t have one. It is a rational calculation on the part of insurance companies that always encourage you to take preventive measures. Weather it is cheaper to pay for contraceptives or hospital fees for unwanted pregnancy, the answer is clear. It is especially important after Obamacare came into effect.

  20. Randy says

    ” it ruins the respect we have for the institution of the Supreme Court.”

    Oh, Ari. Don’t think this too big a loss. I suspect most of us already had exactly the level of respect for that organization as it has deserved, at least since Bush v Gore: NONE.

  21. anon says

    The court asking lower courts to rehear cases based on a ruling, or not based on a ruling doesn’t indicate anything about the prevailing law, and certainly the lower courts don’t have to expand the HL ruling in any way due to the precedent.

    I find it very hacky in a year where Nate Silver is expecting the Senate to fall to the Republicans to rely on demonizing SCOTUS ruling to try to win elections. Polling has shown consistently that increased premiums due to Obamacare are one of the main drivers of middle aged women to vote Republican this year. You aren’t going to win them back with free contraception coverage for young women that raises insurance rates further. If this argument doesn’t get Nate to swing the Senate back to Democratic hands by Labor Day then it should be dropped (it probably will anyway).

  22. Kurt says

    It doesn’t make much sense for people’s healthcare to be controlled by their employers. But even so, isn’t the employer only paying for the insurance, not the healthcare directly? And isn’t this insurance part of the employee’s total compensation, such a salary, vacation time, life insurance, etc. In all those case, the employee has sole control of how to use them — which is only fair, as the employee has earned them in return for their work. Why should the employer uniquely have specific control when it comes to matters of health. The government’s role here is only to regulate MINIMUM standards for insurance policies must provide. It doesn’t say what services an employee chose to use.

    We know from surveys that about 95% of women use contraception at some point during their lives, so providing that as part of insurance policies seems a reasonable minimum standard, and in any case, it’s what Congress and the president decided to do. If conservatives disagree, we have a democratic process to change the policy. The Court has no basis to interfere, because employers have no basis to interfere in how their employers use their compensation. But this Court has consistently favored corporations over people — in fact, it sees them as some sort of super-people, whose rights matter more than those of ordinary people.

  23. TKinSC says

    So the court that just ruled in Hobby Lobby is going to legalize same-sex “marriage” nationwide, right?